TED CHAVEZ, Appellant, v. O. E. SARGENT et al., Respondents.
S. F. No. 19863
In Bank
May 19, 1959
162 Cal. 2d 162
The judgment is affirmed.
Gibson, C. J., Traynor, J., Schauer, J., Spence, J., McComb, J., and Peters, J., concurred.
Severson, Davis & Larson, Nathan R. Berke and George Brunn as Amici Curiae on behalf of Appellant.
Morgan & Beauzay, Robert Morgan and Louis Sherman for Respondents.
Charles P. Scully, Victor Van Bourg, Gladstein, Anderson, Leonard & Sibbett and Norman Leonard as Amici Curiae on behalf of Respondents.
SCHAUER, J.- Plaintiff appeals from a judgment of dismissal entered after a general demurrer to his complaint was sustained and he had declined to amend. By the complaint an employer seeks injunctive relief from activities of defendants, a labor union and its secretary, designed to induce plaintiff to enter into a union shop agreement with defendant union. Both plaintiff and a majority of his employes desire such an agreement, i.e., neither plaintiff nor defendants wish to force
The controlling issues, it will develop, are (1) whether the state by valid law has occupied the field so comprehensively that the ordinance cannot stand, and (2) whether the complaint states a cause of action under state law. To resolve these issues confidently requires examination of the state‘s statutory law concerning not only the relations between labor and management, as such, but also that which regulates relationships and activities between competing labor organizations and between those organizations and their own members, and the members of other organizations, and unorganized workmen, and the rights, if any, of the individual workmen to participate in the selection of their bargaining agents and in the determination of objectives of collective negotiations and ultimate terms of agreement. The statutory law must be interpreted in the light of the earlier decisions of this court as they, in turn, have been affected by developing law, both statutory and decisional.
By way of circumscription, however, and to preclude misapprehension as to the import of our discussion or holdings, we note that this litigation presents no occasion to, and we do not, consider or undertake to define the extent to which, as between any willing employer and any willing union, the Legislature can validly regulate their respective basic freedoms to voluntarily contract for the services and remunerations of workmen and for other basically lawful objectives of the contracting parties.
We have concluded that: (1) There is no cause of action under the ordinance, for such ordinance is invalid because it contains unseverable provisions which conflict with both the legislatively declared general labor policy of this state and certain specific implementations thereof. (2) No cause of action under the general law of this state is or can be stated because it affirmatively appears that plaintiff and defendants propose to execute a mutually desired, lawful, collective union security agreement arrived at by means which accord with and fully recognize the rights of plaintiff‘s individual workmen to organize and to participate in the selection of their bargaining agents for the negotiation of such agreement free from employer interference, all in accord with the
The complaint alleges the enactment and terms of the subject ordinance (No. 201). Its provisions are quoted or summarized in the margin.1 The further substance of the complaint is by no means a model of certainty or clarity. However, the facts directly or inferentially alleged were summarized in the opinion prepared by Presiding Justice Peters (now an associate justice of this court) for the District Court of Appeal before transfer of the cause to this court and as neither party suggests any error in such summary we adopt it (with interpolations of certain further details averred in the complaint) as a correct summary of the pleading.2
[]The complaint alleges that the plaintiff, Ted Chavez, is a painting contractor doing commercial and residential
Defendants argue that by the Taft-Hartley Act (Labor Management Relations Act of 1947, 61 Stat. 136, as amended;
The power of San Benito County (not a chartered county) in respect to this ordinance is defined by
California‘s leading case on the pertinent subject states the law as follows: “[4] ... ‘Where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipality with subordinate power to act in the matter may make such new and additional regulations in aid and furtherance of the purpose of the general law as may seem fit and appropriate to the necessities of the particular locality and which are not in themselves unreasonable.’ [Citation.] The cases in this state have consistently upheld local regulations in the form of additional reasonable requirements not in conflict with the provisions of the general law. [Citations.]
“[5] This general rule permitting the adoption of additional local regulations supplementary to the state statutes is subject to an exception, however Regardless of whether there is any actual grammatical conflict between an ordinance and a statute, the ordinance is invalid if it attempts to impose additional requirements in a field which is fully occupied by the statute. Thus, an ordinance which is substantially identical with a state statute is invalid because it is an attempt to duplicate the prohibition of the statute. [Citations.] The invalidity arises, not from a conflict of language, but from the inevitable conflict of jurisdiction which would result from dual regulations covering the same ground. Only by such a broad definition of ‘conflict’ is it possible to confine local legislation to its proper field of supplementary regulation.”
A further pertinent principle is: “Where the Legislature has adopted statutes governing a particular subject matter, its intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme. [Citations.]” (Tolman v. Underhill (1952), 39 Cal. 2d 708, 712 [6].)
State regulation of a subject may be so complete and detailed as to indicate an intent to preclude local regulation. (Wilson v. Beville (1957), 47 Cal. 2d 852, 860 [8]; Tolman v. Underhill, supra, pp. 712-713 [6, 7] of 39 Cal.2d.) In this connection it may be significant that the subject is one which, in our view, as in Tolman v. Underhill, supra, p. 713 [7] of 39 Cal.2d, requires uniform treatment throughout the state. Furthermore, and of significance in impelling a conclusion that no part of the local ordinance can be effective, is the fact that in aspects wherein it does not subtantially either parallel or breach specific state legislation it conflicts, as hereinafter explained, with a general legislative declaration of policy. (See In re Porterfield (1946), 28 Cal. 2d 91, 115-118 [27-28].)
No case has been found which discusses the question whether an ordinance which conflicts, not with statutory, but with decisional, law on a subject of state-wide concern, violates the requirement of
The Legislature has not enacted a completely detailed scheme of regulation of the “field” which this ordinance is principally designed to affect; i.e., the legality of jurisdictional (or jurisdictional-organizational) strikes and of union shop or security agreements4 and conduct intended to attain or
Prefatorily it is observed that the legality of the closed shop,5 and of the strike and boycott, primary and secondary, as means of enforcing or seeking that objective, were recognized by this court at a comparatively early date, under common law principles, in J. F. Parkinson Co. v. Building Trades Council (1908), 154 Cal. 581, and Pierce v. Stablemen‘s Union (1909), 156 Cal. 70. The legality of conduct akin to the “jurisdictional strike” (concerted union activity in connection with a dispute between “labor organizations,” as that term is defined in legislation hereinafter quoted) was recognized, under an application of the principles of the Parkinson and Pierce cases, in Greenwood v. Building Trades Council (1925), 71 Cal. App. 159, 167, 175.
The Legislature tacitly recognized the propriety of the closed shop by statutes enacted between 1905 and 1921 (the provisions are now in
With labor emerging from weakness toward power, the justness of its cause was gaining recognition. Such recognition did not come without struggle and strife, costly to labor, to management and to the public, but come it did. Eventually taking cognizance of the need for more equality in bargaining power as between workmen and employers, of the developing manifestations of change in political climate, of the growing competition between organized capital on the one hand and organized labor on the other, and between competing labor organizations, and the impact of all these competitions on the welfare of the general public as well as on that of the competing parties, both the Congress of the United States and the Legislature of this state adopted legislation establishing both general policy and certain implementations thereof. (See as to federal legislation: Norris-LaGuardia Act, 1932, 47 Stats. 70,
It is important to note, as will hereinafter be emphasized, that notwithstanding the pushing and pulling as between “big business” and increasingly powerful labor organizations, the State of California-and the proponents of its legislation-made welfare of the individual workmen, through the principle of freedom to associate, organize and bargain collectively, the paramount principle of its legislation. The addition (by California‘s voters on referendum at the general election in 1942) of the “Hot Cargo” and “Secondary Boycott” Act (Stats. 1941, ch. 623, p. 2079) and of the Jurisdictional Strike Law in 1947 (Stats. 1947, ch. 1388, p.
As hereinabove mentioned, in 1933 the California Legislature enacted the “general laws” (Stats. 1933, ch. 566, p. 1478) recast and adopted as sections 920 through 9237 of the Labor Code in 1937, which sections, together with the Jurisdictional Strike Law8 (Stats. 1947, ch. 1388, § 1, p. 2952, as amended
The first enacted portion of the subject legislation (
In the McKay case plaintiffs-employes had chosen their own representatives to bargain with their employer and were satisfied with their relations with their employer. From the fact that the McKay employes had chosen their own representatives and authorized them to bargain with their employer it is apparent that (unless they were employer financed or controlled or “interfered with“) they had a “labor organization” within the definition of that term as used in the Jurisdictional Strike Law, which was subsequently enacted and is hereinabove quoted and hereinafter discussed. Whether plaintiffs’ organization (in the McKay case) was a company union or a small independent union was not decided by the court.9 In either event, it was held, plaintiffs could not have equitable protection against defendant unions’ concerted activity (picketing and promotion of secondary boycotts) designed to attain a “closed union shop” or “union shop” with certain of the demanding unions displacing the independent union and becoming the exclusive bargaining agents of the unwilling employes. C. S. Smith Met. Market Co. v. Lyons (1940), supra, 16 Cal.2d 389, 395-396 [3-6], reaffirmed the view that it was lawful to engage in concerted union activity, including the secondary boycott, designed to attain “a closed union shop” where the activity was directed against an employer to induce him to compel his employes (who were satisfied with the terms of their employment, which included an open shop without discrimination against union employes) to subject themselves to the unwanted jurisdiction of, and representation by, the invading union. These cases (McKay and C. S. Smith), it is, or in later discussion will become, obvious, have been superseded to the extent that they are inconsistent with the Jurisdictional Strike Law. The subject cases, however, have not been supplanted or overruled insofar as they hold that
In the Shafer case (1940), supra, 16 Cal.2d 379, the facts, presented by agreed statement, were not in dispute. Plaintiff
In reading the following paragraphs it is important to bear in mind that
“Impartial studies of the labor movement in this country show that for many years the extension of collective bargaining in industrial relations has been opposed by employers. Chief among the devices resorted to for that purpose has been the anti-union or ‘yellow dog’ contract, an agreement between an employer and his employee which, in its usual form, provides that the employer will maintain his business on a non-union basis and the employee will not become a member of any labor union during the course of his employment. . . .
“However, with the growth of the labor movement in this country and the development of public opinion more favorable to collective bargaining, industry found it advisable to change the methods of opposition. Many employers, although professing to accept the principle of collective bargaining and unionization by which it is made effective, either directly or indirectly sponsored company controlled unions having no members except their own employees, and by that means were able to minimize the workers’ demands. This was a change in method only. . . .
“[P. 385 of 16 Cal.2d.] The California legislation is the result of labor‘s efforts [to outlaw “yellow dog” contracts and regulate company unions] . . . [P. 386.] Bearing in mind the necessity for economic equality as a foundation for fair bargaining, the plain language of
“Considering another point made by the employer in this connection, the clause ‘to join or to remain a member of a labor organization’ may not reasonably be construed as prohibiting a promise to join an independent labor union. Although the term ‘labor organization,’ taken by itself, is broad enough to refer to either a company or an independent union, the purpose of the legislation must be considered in arriving at a conclusion concerning its meaning. If the words are meant to designate an independent union, then it is against public policy for an employee or prospective employee to join such an organization, which is a result exactly contrary to the dec-
“These and other considerations render untenable the contention that union shop contracts in California are void under
The important holding of Shafer is the conclusion that
. . . If there were otherwise any doubt as to the correct interpretation of
. . . Inherent in government—in all social and economic regulation—is an area of give and take. There must be a weighing of values. It is of primary importance that the individual workman have protection—that he have “full freedom” of “self-association” and in the designation of representatives of “his own choosing.” But it is also essential that the group‘s lawfully selected negotiators have power and freedom of contract to secure the workman‘s interests by contract with employers, and that for the ultimate benefit of each individual workman the authorized representative
Considerable assistance in understanding the legislative objectives, and therefore the legislative language, in the enactment of
The view of the District Court of Appeal in that case (opinion reported in (1939), (Cal.App.) 89 P.2d 426; opinion on denial of rehearing reported in (1939), 90 P.2d 113; vacated when this court granted a hearing) is discussed in 2 Teller, Labor Disputes and Collective Bargaining (1940), § 461, p. 1359, under the section heading “Judicial Applications of Anti-Yellow-Dog Statutes.” . . . As the Teller work points out (1 op.cit., § 48, p. 118), “The typical yellow-dog contract is an at-will employment agreement which contains, in addition to the usual provisions for employment, the following three provisions: (1) a representation by the employee that he is not a member of a labor union; (2) a promise by the employee not to join a labor union; (3) a promise by the employee that, upon joining a labor union, he will quit his employment.” From the placement of his discussion in a section directed to anti-yellow-dog statutes it appears that Teller correctly assumes that the legislation considered in McKay (
“The danger inherent in labor law statutes at the hands of a judiciary unmindful of the historical facts behind such legislation has already been demonstrated by a California court in relation to an anti-yellow-dog contract statute of the type which declared the contract void and denied to it any legal or equitable relief. In McKay v. Retail Automobile Salesmen, it was held [by the District Court of Appeal in its vacated opinions reported in (Cal.App.) 89 P.2d 426, 90 P.2d 113] that
Mr. Teller‘s just quoted language in respect to the tentative decision of the District Court of Appeal is not very clear. But his position as to the decisions of this court in McKay and companion cases is obvious from his discussion in the 1947 Supplement to Labor Disputes and Collective Bargaining, § 461, pp. 408-409. There he says:
“The McKay case was reversed10 by the Supreme Court, the high California court holding labor activity legal though carried on against the desires of the employer‘s employees. [(1940), 16 Cal.2d 311 (106 P.2d 373)], cert. den. 313 U.S. 566, 61 S.Ct. 939, 86 L.Ed. 1525 (1941). Accord: Smith Metropolitan Market Co. v. Lyons [(1940), 16 Cal.2d 389 (106 P.2d 414)]; Lund v. Auto Mechanics’ Union [(1940), 16 Cal.2d 374 (106 P.2d 408)]. Picketing or striking for a closed shop is also lawful in California. Shafer v. Registered Pharmacists Union Local [(1940), 16 Cal.2d 379]. In the Shafer case, supra, the Court considered the background of
“There is reason to pause, before according to labor unions the right to engage in labor activity for the closed shop in connection with employers whose employees do not desire to be represented by unions. The National Labor Relations Act has expressed a policy in favor of closed shop contracts only where a majority of the employer‘s employees in an appro-
. . . In interpreting
. . . As we have hereinabove indicated, the language used in
“Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Italics added.)
. . . It has been suggested that because the opening sentence of
At this point certain principles and objectives of California‘s labor laws will have become apparent; but it is likewise apparent that in the road leading to those objectives there is an area wherein several excellent values will assert respectively conflicting claims. We list first the indicated principles and objectives and thereafter suggest some of the values and their conflicting claims.
Some Principles and Objectives of California‘s Labor Law
. . . 1. Both labor and management are encouraged toward, and protected in, the formation of their own respective organizations. (
. . . 2. The individual workman shall have full freedom of self-organization and designation of representatives of his
. . . 3. Collective bargaining, implicitly including union security measures, should result from “voluntary agreement between employer and employees,” the latter acting (of necessity if it be collective bargaining) through their chosen collective bargaining representative (Id.)
. . . 4. The employes as individuals shall be free from employer influence either to organize or not to organize and, if they elect to organize, in the choosing of their representatives. If organized by the employes’ free act, the workmen through their selected representatives are free to bargain collectively.
. . . Corollarilly, the employer (absent some legal impediment not here suggested) is free to bargain with the employes’ authorized representatives but is not free to interfere with, restrain or coerce his employes in their selection of a collective bargaining representative. (
. . . 5. The avoidance of violence in labor-management, organizational and jurisdictional matters is a policy of the state and, to that end, it is desirable to regulate, or as to some objectives and in some circumstances to prohibit, activities which create or foster situations which are conducive to mass emotions and violent acts. (Id.)
. . . 6. The Legislature (as is hereinafter shown in more detail), implementing the policy noted in the preceding paragraph, has declared unlawful various activities by unauthorized unions or organizers which have as their objective the securing of jurisdiction over the unwilling workmen of any particular employer or group of employers or an employes’ group, by means other than (speaking generally) an intellectual appeal. (
Conflicting Claims of Relative Values
In a general sense, there should be no serious dispute as to the acceptability of the following principles: (1) That the terms and conditions of labor employment be fixed through bargaining; (2) that the bargaining power of management and labor be substantially equal; (3) that labor-management contracts result from voluntary agreements; (4) that lawful collective agreements be mutually respected and enforceable; (5) that physical violence in labor disputes be avoided; (6) that the individual workman be free from employer influence in selecting his bargaining agent; (7) that the individual
The difficulties arise in the practical attainment of the desirable ends and among those difficulties the following are noted:
Probably above all else in principle, democracy in labor unions is important to the workman. Democracy to an individual workman may conceivably mean (we are not at this point intimating any view as our own) any or all of the following “rights“: to belong to a union, or not, as he may choose; to freely select his own bargaining agents; to change them when he wishes; to have the power, through majority vote, to instruct his representatives as to the terms and conditions of labor which he wishes to have negotiated; to not be excluded from employment in a particular shop because of a union shop contract with a union other than his own; to not be compelled to pay union dues as a condition of retaining employment in a shop wherein the contract has been negotiated neither by his own union nor by any representative authorized by him, and perhaps not even in an industry wherein the contract has been negotiated by his own union; etc. But no more can the rank and file individual workmen conduct the business of a union than can the rank and file voters of a nation or state conduct its governmental and business affairs. Even though we pride ourselves in our democracy, we run the business of our country as a republic; i.e., through elected representatives and through officers and agents who have either been elected, or been appointed by those who have been elected.
To union officers, some of the following considerations may appear in the forefront of importance: In the broader markets union labor must compete with nonunion labor as well as with the organized power of management; the closer the union comes to complete control of the relevant labor market the greater will be its ability to negotiate on substantially equal, or superior, terms with management, and to that end recruitment of members by various concerted pressures, as well as by purely intellectual appeals, will appear highly desirable, if not necessary. As to authority to act, the negotiating officers no doubt will feel that they should be able to make firm offers and demands and have available an area for give and take; they must base their demands on an ac-
. . . Certainly advancement of the interests of the individual workman, of his right to organize and to bargain collectively—service to benefit him in all the conditions and circumstances of his work—is the compelling reason for governmental protection of labor organizations. As nearly as labor may be said to have a governmentally declared Bill of Rights in California, it is that enunciated in
“DEMOCRACY IN LABOR UNIONS
“For the American Civil Liberties Union there are at least three compelling reasons why unions should have a special responsibility to maintain democratic standards.
“First, a union in collective bargaining acts as the representative of every worker within the bargaining unit. It speaks for him, makes choices of policies which vitally affect him, and negotiates a contract which binds him. His wages, his seniority, his holidays, and even his retirement are all governed by this contract which becomes the basic law of his working life. The union in bargaining helps make laws; in processing grievances acts to enforce those laws; and in settling grievances helps interpret and apply those laws. It is the worker‘s economic legislature, policeman, and judge. The union, in short, is the worker‘s industrial government. The union‘s power is the power to govern the working lives of those for whom it bargains, and like all governing power should be exercised democratically.
“Second, unions should be democratic because the power which they hold over the individual worker is largely derived from government. Labor relations acts such as the Wagner Act affirmatively protect the right to organize and place the government‘s stamp of approval on unionization. Even more, these statutes provide that government shall certify unions as the officially designated representatives and compel employers to recognize these unions as the exclusive representatives of all workers within the bargaining units. Unions, in the exercise of these powers derived from government, should maintain the same democratic standards required by government itself.
“Third, unions should be democratic because their principal moral justification is that they introduce an element of democracy into the government of industry. They permit workers to have a voice in determining the conditions under which they shall work. This high objective of industrial democracy can be fulfilled only if unions which sit at the bargaining table are themselves democratic. Only to the extent that workers are allowed to participate in determining union policies do they become self-governing.
“THE OBSTACLES OF UNION DEMOCRACY
“Any demands for union democracy must be tempered with a clear recognition of the serious obstacles which face unions in maintaining democratic standards. Historically, many unions have had to struggle for survival against deadly attacks by employers who did not hesitate to use spies, bribery, intimidation, or even physical violence. Although large segments of management have fully accepted collective bargaining, anti-union practices are not dead and the old fears remain. Employers are not the only enemy, for rival unions may constantly threaten the union‘s very existence by raiding its membership or seeking to supplant it as bargaining representative. Even though employers accept unions and no rival union threatens, much of collective bargaining is carried on with the prospect of an ultimate deadlock and resort to economic force. The state of siege, the cold war, and the strike do not provide a healthy climate for the growth of democratic processes. . . .”
After stating the view that a workman having trouble within his union “can place little reliance on the courts, for [first] their results are too unpredictable” and, second, “judicial remedies are so costly and time consuming that few workers can afford to vindicate their rights,” the ACLU report continues: “The third weakness of judicial relief is that many union members have such a deep-seated hostility to the courts that any action may be self-defeating. In a number of instances courts have removed racketeering leaders from office and held new elections only to have the same leaders reelected. The desire to repudiate judicial interference is greater than the desire to repudiate corrupt leadership. . . .
“At the present time the only effective protection is given by the courts. They are burdened with out-moded rules and a confusing body of precedents, resort to them is costly and time consuming, and they are viewed with such hostility by union members that their action is often self-defeating. It is clear that further protection is needed. . . .
“The ACLU still believes that organized labor can and should provide protection of union democracy. . . . If unions fail to take effective action to provide increased protection for the rights of union members, then no alternative is left but to seek increased legal protection.”
Neither before nor since the 1947 and 1955 enactments (adding and amending the Jurisdictional Strike Law) has California‘s statutory law prohibited collective bargaining agree-
. . . If employes have voluntarily become members of any “labor organization” (not financed or interfered with by their employer,
. . . No compact between an employer and a labor organization can deprive the employes initially or permanently of their “freedom” to participate in the selection, or in the changing if they see fit, of their bargaining representatives. It is entirely unnecessary, and would go beyond the issues at bench, for us to consider at this time what limitations, if any, may reasonably be placed on such matters as the freedom of employes to reorganize, or to hold elections for the selection or retirement of their representatives, or to declare new objectives for collective bargaining negotiations. The need for and scope of any such regulations could well have legislative attention. . . . It is sufficient here to suggest that in ordinary governmental matters—national, state and local—every citizen of adult age has the right to vote (unless he has lost it, as in the event of imprisonment for felonious crime) but his representatives, once elected, serve for a term of years (unless, as is provided for in some states, sooner recalled). And it is imperative to remember that if the workmen have no vote in choosing those who negotiate the terms and conditions under which they are to labor then, a fortiori, they have no voice at the bargaining table. This would not be the “full freedom” which
The issue here is not between labor and management; it is between the workmen and the unions: Are we to have workmen‘s unions with unions’ officers? Or bosses’ unions with unions’ workmen?
. . . The right of the workman to participate in the selection of his bargaining agent and in the government of his union is the workman‘s right of self-determination. Organization and collective bargaining are but tools to that end.
. . . A strike with a jurisdictional objective is unlawful in certain applications hereinabove suggested and hereinafter discussed, not because a strike as such is unlawful or unprotected but because it, like any other concerted action, must have a lawful objective. In James v. Marinship Corp. (decided 1944, before enactment of the Jurisdictional Strike Law), 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900], this
. . . There is no longer any doubt as to the right of a state (in a situation where questions of Taft-Hartley preemption are absent) to declare and enforce a policy against coercion by employers of employes in their choice of a collective bargaining representative. In International Brotherhood of Teamsters v. Vogt, Inc. (1957), supra, 354 U.S. 284, the court summarized a series of its cases which “established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy” (p. 293 of 354 U.S.). This series of cases includes Hughes v. Superior Court (1950), supra, 339 U.S. 460 (which holds that the state policy can be expressed by the judiciary rather than the Legislature); International Brotherhood of Teamsters v. Hanke (1950), 339 U.S. 470 [70 S.Ct. 773, 94 L.Ed. 773, 13 A.L.R.2d 631] (which holds that a state can
Implementing in part the generally declared policy of
“As used herein, ‘person’ means any person, association, organization, partnership, corporation, unincorporated association, or labor organization.” (Italics added.)
The language quoted (
It is a primary rule that “courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.” (In re Alpine (1928), 203 Cal. 731, 737 [3] [265 P. 947, 58 A.L.R. 1500].) Particularly is this true when the law as so construed is consistent with the general policy of the state. As applied to the subject legislation, the meaning is that a jurisdictional strike has been shown, insofar as the jurisdictional feature is concerned, whenever it appears that there is a controversy between any two “labor organizations” within the definition of
The Jurisdictional Strike Law makes clear that it is the policy of the state to avoid jurisdictional strife and, as a corollary, to protect both management and labor organizations in established employer-employee relations. Collective bargaining agreements would seem to be scarcely worth the time and effort of negotiation if the first labor organization to thereafter come along with a view to recruitment could impose concerted pressure against the employer to induce the latter to agree that he will discharge his employees unless they pay dues to the new union and accept it in place of their established organization as their sole bargaining agent.
Pressure by a union or its organizers to compel an employer, whose employees are not organized and do not wish to be organized, to execute a closed or union shop agreement with the unauthorized union, is essentially a jurisdictional dispute pressure. The object of such pressure is not to gain security protection in respect to an existing collective bargaining contract or for the employees’ authorized labor organization; rather, its objective is to secure jurisdiction over (to displace and replace through employer compulsion) an employer-employee relationship to which the union is not a party. It is clear that this type of concerted activity—this objective—is contrary to the policy of California. (
Further definition of the state‘s policy as to protection of the individual workman is encompassed in
Industrial self-government is a goal to be desired.
An effect to be desired is to decrease activities in the wasteful arena of economic combat and increase reliance on the orderly processes of administering collective bargaining agreements; viz., promotion of peaceful negotiation and, when necessary, arbitration or court proceedings, but not strikes, lockouts, work stoppages, mass picketing, or acts of physical or economic violence which, if not specially protected, would constitute torts or other violation of laws, state or federal.
An agreement freely negotiated and voluntarily accepted by and between a union and an employer is likely to be mutually respected and, assuming lawful objectives, can be specifically enforced through arbitration or court action, if the impelling forces of self-respect, honesty and public opinion prove insufficient. Such an agreement can scarcely be reached, and the climate for its duration will likely be unpleasant, if it is the product of coercion starting with a jurisdictional assault. And the combat is no less in truth jurisdictional where the assault is made by an organizer upon a relationship between an employer and his satisfied unorganized or self-organized employees than where the attack is on a formally organized union-employer agreement. If jurisdiction-objective raids by attacking organizers on establishments enjoying freely and fairly negotiated labor agreements are precluded and if labor and employer objectives and tactics are carefully screened, it well may be that the means of enforcement toward legitimate ends can be greatly strengthened.13
The constitutionality of the Jurisdictional Strike Law, hereinabove quoted and discussed, has already been established. (Seven Up etc. Co. v. Grocery etc. Union (1953), supra, 40 Cal.2d 368.) In that case plaintiff employer, among other things, raised the contention (which had been specifically rejected in McKay, Shafer, and C. S. Smith) that defendant unions, by concerted activity designed to force the employer to require its employees to join a particular union,
In the first Garmon case (Garmon v. San Diego Bldg. Trades Council (1955), 45 Cal.2d 657, 665 [13] [291 P.2d 1]) and in Charles H. Benton, Inc. v. Painters Union (1955), 45 Cal.2d 677, 681 [5] [291 P.2d 13], this court, without finding necessity or occasion to reconsider the construction of
Upon the remand of Garmon a majority of this court concluded that its earlier view (enunciated in 1940 preceding both the enactment of
The United States Supreme Court again granted certiorari and, in San Diego Building Trades Council v. Garmon (1959), supra, 359 U.S. 236 [79 S.Ct. 773, 3 L.Ed.2d 775], reversed our second Garmon judgment. It said, “When an activity is arguably subject to § 7 [setting out federally protected labor activities] or § 8 [setting out federal unfair labor practices] of the [Taft-Hartley] Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted. . . . [T]he failure of the Board to define the legal significance under the Act of a particular activity does not give the States the power to act. In the absence of the Board‘s clear determination that an activity is neither protected nor prohibited or of compelling precedent applied to essentially undisputed facts, it is not for this Court to decide whether such activities are subject to state jurisdiction. . . . The governing consideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy. . . . Since the National Labor Relations Board has not adjudicated the status of the conduct for which the State of California seeks to give a remedy in damages, and since such activity is arguably within the compass of § 7 or § 8 of the Act, the State‘s jurisdiction is displaced.” (Italics added.)
The second United States Supreme Court Garmon decision and its predecessors, such as Garner, are disturbing because of their relation (or lack of relation) to the principles enunciated in Yick Wo v. Hopkins (1886), 118 U.S. 356, 370 [6 S.Ct. 1064, 30 L.Ed. 220]: “the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of
In many situations there remains uncertainty as to whether a state can afford relief for conduct which violates state law and also may be potentially subject to regulation under Taft-Hartley. We are told that the state cannot control peaceful activities which are “arguably” subject to the national board‘s determination that they can be federally regulated. We do not know whether a state can properly rest its regulation of or redress for conduct which is tortious under state law upon a state finding that the conduct in fact has no arguable relation to interstate commerce or in fact is a threat to public peace or private interest in freedom from violence or intimidation. We do know that as to “activities that are potentially subject to
As we have pointed out, however, the federal Garmon decisions do not affect disposition of the case at bar, for it does not appear that the subject activities have even an arguable relation to interstate commerce. Our conclusions in the present case, furthermore, are independent of, and do not rest on, our second Garmon decision, supra, 49 Cal.2d 595.
The limited effect, in any event, of the second Garmon decision of this court upon the statutory and decisional rules of this state is apparent not only from the court‘s treatment therein of the McKay and related cases but from its express statement. The opinion in the subject Garmon decision (pp. 612-613 of 49 Cal.2d) points out that “we are requested to reconsider” McKay, but concludes that such reconsideration is unnecessary “for the reason that the result sought by the request has already been accomplished” by enactment of the Jurisdictional Strike Law which made the activities of defendants in McKay unlawful (assuming that plaintiffs there did not comprise an employer dominated or “interfered with” union), by the decision in Seven Up etc. Co. v. Grocery etc. Union (1953), supra, 40 Cal.2d 368, which upheld the constitutionality of that act, and by the decision in International Brotherhood of Teamsters v. Vogt, Inc. (1957), supra, 354 U.S. 284, 294, that where interstate commerce is not involved a state can enjoin picketing to coerce an employer to put pressure on his employees to join a union. It was unnecessary to, and this
From the preceding discussion it appears that
Again, we emphasize, we are not now concerned with defining the validity or the reach of legislation insofar as in some particular application not now before us it might be urged to unlawfully curtail the freedom of competent parties to contract for lawful objectives. Such issues may be resolved when they arise.
From the diverse issues as to labor matters in the many cases which have come before the courts of this state it has appeared that California could well further implement her
Although the Legislature has not stated what procedures as to the attainment of union designation or authorization can or shall be followed by a union which represents some but not all of the employees of an employer, who may or may not desire union representation, it has unequivocally declared a general policy favoring the right of voluntary organization and voluntary security measures and forbidding coercion or compulsion of employees by employers in the choosing of representatives.
The ordinance here under consideration does not properly regulate these last mentioned matters which the Legislature has left unregulated. Rather, it attempts to cut across the legislatively declared state-wide policy as to the full freedom of employees for self-organization and for voluntarily selecting, and negotiating agreements through, their own employee committees or agencies. The ordinance contravenes that policy as to voluntary self-organization and authorized negotiations for union security and partially duplicates that policy insofar as it prohibits jurisdictional-organizational assaults on unwilling employee-employer relationships. The ordinance sweepingly prohibits (in § 3) “any agreement . . . which excludes any person from employment because of non-
There remains to be determined what character of relief, if any, may be afforded in this action under existing law.
In our determination of the question whether the complaint states a cause of action for the legislatively denounced tort of coercing an employer to compel his employees to join and be represented by a labor organization not selected by the employees (
Notes
The labor organization must be the collective bargaining representative designated or selected by a majority of employees in an appropriate bargaining unit; there is no particular statutory procedure prescribed for this selection or designation (except where there are controversies concerning representation or recognition, in which cases the procedure is set forth in § 9(c)); the representative selected by the majority is the exclusive collective bargaining representative of all the employees in the unit. (§§ 8(a) (3) (i), 9(a).) The National Labor Relations Board decides what bargaining unit is appropriate. (§§ 8(a) (3) (i), 9 (b).) The union must have filed copies of its constitution and bylaws and certain reports with the Secretary of Labor and filed non-Communist affidavits with the board. (§§ 8(a) (3) (i), 9(f), (g), (h).)
But the essence of the allegation concerning Taft-Hartley, as we understand it in context, is that the union shop contract which the parties here wish to execute was (or will be) negotiated and agreed upon by plaintiff employer and defendant union only after all plaintiff‘s employees to be covered by the agreement had (or shall have had) the opportunity, free from interference by plaintiff, to participate in choosing (or in rejecting) the union as their collective bargaining representative authorized to negotiate for legitimate terms and conditions of employment, and after a majority of the employees had (or shall have) so selected and authorized the union. This, fundamentally, is “as permitted by the NLRA (Taft-Hartley)” and is precisely as authorized by
Inasmuch as defendants’ objective—a lawfully negotiated union shop contract—is proper, and the means by which they
For the reasons above stated, the judgment is affirmed.
Shenk, J., and Spence, J., concurred.
MCCOMB, J.—I concur in the judgment in this case; also in the careful and accurate reasoning of Mr. Justice Schauer in support of the judgment. From our decision he now learns that the ordinance is invalid and no legal impediment to execution of the contract appears. But in the interest of orderly and fair procedures, and the avoidance of disputes following execution of union security contracts, the following matters merit mention.
Plaintiff‘s employees are not parties to this litigation. Plaintiff, or some other employer in a similar situation, before entering into any union security compact, might wish some assurance that a majority of his employees do in fact desire to be represented by the union; i.e., assurance that he will not commit the tort of forcing a union shop upon an unwilling majority of employees if he agrees to a union security contract. Surely the employer‘s mere furnishing to his employees of the opportunity to hold an election (preferably equally participated in and supervised by the union) would not be interference with their rights of self-organization and selection of their bargaining representative, or interference with or undue support of the union.
The right to contract is a natural and inalienable right protected by both the federal and state Constitutions. The citizen‘s rights of liberty, property, and the pursuit of happiness, which are protected by the
The power to restrict the right of private contract is strictly limited to police regulations in behalf of the public health, safety, morals and welfare. The Legislature may not limit parties in their power to incorporate in their contracts, otherwise valid, such terms as may be mutually satisfactory to them. Nor does the Legislature have the power to impose regulations which infringe upon the constitutional rights of the parties making the contract.
The foregoing principles have been recognized in a long line of decisions by the Supreme Court of the United States, the Supreme Court of California, and numerous other courts of last resort. See cases cited in 16 C.J.S. (1956) Constitutional Law, § 210, p. 1065 et seq.; 11 Am.Jur. (1937) Constitutional Law, § 339, p. 1153, § 344, p. 1168.
The following excerpts are just a few which support the principles above announced and they illustrate that the federal and state Constitutions have completely occupied the field of freedom of contract, guaranteeing to citizens the broadest liberty in entering into contracts which are mutually satisfactory to them.
In Allgeyer v. Louisiana, 165 U.S. 578 [17 S.Ct. 427, 41 L.Ed. 832], the Supreme Court of the United States in discussing the right of the State of Louisiana to limit the issuance of marine insurance policies to companies authorized to do business in that state said at page 589: “As so construed we think the statute is a violation of the
In Twin City Co. v. Harding Glass Co., 283 U.S. 353, at page 356 [51 S.Ct. 476, 75 L.Ed. 1112, 83 A.L.R. 1168], the Supreme Court of the United States said: “The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”
In New Method Laundry Co. v. MacCann, 174 Cal. 26 [161 P. 990, Ann.Cas. 1918C 1022], which granted an injunction restraining a former employee of a laundry from soliciting business from customers whose names appeared on the laundry‘s list of customers, but not from receiving laundry work from customers of his former employer tendered him without solicitation on his part, the court said at page 32: “To restrain a person lawfully engaged in a laundry business from receiving unlaundered goods from certain former patrons is to sanction, to that extent, the establishment of a trade blacklist, thereby depriving such patrons, without any fault on their part, of the right to have their laundry work done where they will. The constitutional guaranties of liberty include the privilege of every citizen to freely select those tradesmen to whom he may desire to extend his patronage, and equity cannot invade or take away this right, either directly or indirectly.”
In Snell v. Bradbury, 139 Cal. 379, 381 [73 P. 150], this court said: “The right to acquire, possess, and protect property includes the right to make all reasonable contracts with respect thereto, and this right is guaranteed by the constitution. The right of the ‘owner is invaded, if he is not at liberty to contract with others respecting the use to which he may subject his property or the manner in which he may enjoy it.’ (Stimson Mill Co. v. Braun, 136 Cal. 125 [68 P. 481, 89 Am.St.Rep. 116, 57 L.R.A. 726].)”
In Ex parte Dickey, 144 Cal. 234 [77 P. 924, 103 Am.St.Rep. 82, 1 Ann.Cas 428, 66 L.R.A. 928], involving a statute limiting the compensation of employment agents, this court
In the same case, at page 238, the court said: “This right of contract common to the followers of all legitimate vocations is an asset of the petitioner in his chosen occupation, and, as has been said, is a part of the property in the enjoyment of which he is guaranteed protection by the constitution.”
In Ex Parte Hayden, 147 Cal. 649, 650 [82 P. 315, 109 Am.St.Rep. 183, 1 L.R.A. N.S. 184], we stated: “It has come to be well recognized that the liberty and the pursuit of happiness in which the individual is protected by the
“Putting out of contemplation, therefore, the fundamental right of the government to subject private property to taxation and to take such property in time of public calamity and peril, the right of the state to impose burdens upon such property where the business is legitimate and innocuous,—in other words, to regulate harmless vocations,—is found in the police power alone.”
In Ex Parte Drexel, 147 Cal. 763, 764 [82 P. 429, 3 Ann.Cas. 878, 2 L.R.A. N.S. 588], it was stated: “The liberty mentioned is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling, and for that purpose to enter into all contracts which may be proper, necessary, and essential, to his carrying out to a successful conclusion the purpose above mentioned. . . . And the court further declare that a statute prohibiting, regulating, or interfering with private business can be upheld only under the police power, and that the police power can be rightfully exercised only when the statute in
On page 767 of the same case it was said: “The law, therefore, being settled that the legislature cannot prohibit or seriously interfere with the right of the citizen to make harmless contracts touching the acquisition, protection, management, and enjoyment of property,—contracts which do not wrongfully affect the lawful rights of others or the public safety, health, or morals,—the remaining question in these cases at bar is whether trading-stamps or coupons constitute contracts which are outside the protection of the constitutional principles above declared.”
In Stimson Mill Co. v. Braun, 136 Cal. 122, 125 [68 P. 481, 89 Am.St.Rep. 116, 57 L.R.A. 726], it is stated: “The right of property antedates all constitutions, and the individual‘s protection in the enjoyment of this right is one of the chief objects of society. He has the right to enjoy his property and improve the same according to his own desires in any way consistent with the rights of others, subject only to the just demands of the state. This right is invaded if he is not at liberty to contract with others respecting the use to which he may subject his property, or the manner in which he may enjoy it. The legislature may prescribe the form in which contracts shall be executed in order that they may be valid or binding, but it cannot limit the right of parties to incorporate into their contracts respecting property, otherwise valid, such terms as may be mutually satisfactory to them. A statute declaring invalid any contract by the owner of real property, for the construction of a building thereon, unless it is provided therein that the contract price shall be payable only in money, is unconstitutional in that it is an infringement upon the right of the owner in the possession and enjoyment of his property.”
In Gibbs v. Tally, 133 Cal. 373, 377 [65 P. 970, 60 L.R.A. 815], this court said: “It is also an unreasonable and unnecessary restriction upon the power to make contracts. (Citations.) It clearly contravenes the provisions of
In Ex Parte Quarg, 149 Cal. 79, 80 [84 P. 766, 117 Am.St.Rep. 115, 9 Ann.Cas. 747, 5 L.R.A. N.S. 183], appears the following: “The constitutional guaranty securing to every
In Credit Bureau of San Diego v. Johnson, 61 Cal.App.2d Supp. 834, 839 [142 P.2d 963], the court said: “The right to make lawful contracts are rights enjoyed by the citizens under the protection of the
“. . . Can it be said that the Employer‘s Liability Act and the provisions of the state Constitution authorizing the statute were intended to abrogate the constitutional right of the parties to so contract? In approaching this problem we cannot assume that the Legislature either wilfully or ignorantly intended to violate the organic law of the United States.”
Gibson, C. J., and Traynor, J., concurred in the judgment.
The refusal of union men to work with non-union men is a traditional weapon of organized labor. Such concerted refusal might, in some circumstances, violate the Jurisdictional Strike Law (
The allegation that “members of Local 1157 are conspiring to have non-union painters join the said union and they persist in refusing to work with non-union painters” does not in its context suggest any improper activity directed against plaintiff. It has been said that “conspiracy” is “a word which imports illegality” (Pierce v. Stablemen‘s Union (1909), supra, 156 Cal. 70, 75) but the bare word is a mere conclusion and, without supporting facts showing illegality, does not allege unlawful coercion (see McKay v. Retail Auto. S. L. Union No. 1067 (1940), supra, 16 Cal.2d 311, 325 [11]). As used in the complaint here the subject allegation appears, at most, to constitute an attempt to plead a violation of section 6 of the subject ordinance, which provides that “Any combination or conspiracy by two or more persons to cause the discharge of any person . . . because he is not a member of a labor organization, by inducing or attempting to induce any other person to refuse to work with such person, shall be illegal.” Since the ordinance is void a violation of its terms is immaterial.